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Legal and Constitutional Affairs Legislation Committee
11/05/2012

GRANGER, Mr Jonathan, Vice President (NSW/ACT), Migration Institute of Australia

HORDER, Ms Maurene, Chief Executive Officer, Migration Institute of Australia

Evidence was taken via teleconference—

[13:58]

CHAIR: Welcome to you both. We have had a bit of difficulty with our teleconferencing today, so hopefully this will go all right. We have your submission, which we have numbered 15 for our purposes. I am going to ask you to provide us with some comments and then we will go to questions.

Ms Horder : We appear before you this afternoon as the Migration Institute, representing migration agents, but the institute also represents education agents. A number of our members are education agents—principally those that also serve in a dual capacity as a migration agent and an education agent. I just wanted to draw that fine line. I have appeared before your committee previously representing just registered migration agents but we are wearing two hats today. We welcome this bill, as we do the implementation by the government of the Knight review and the many recommendations that have already been called forward. If we get a moment, I would like to talk a little further not specifically about this bill but about a couple of issues that bear on the bill. It seems to us that there have been many inefficiencies and an inappropriate situation with a lot of the systemic failures with the automatic cancellation system that has prevailed now for some years. So we certainly have a position of acceptance of the government's bill. I alluded a moment ago to the fact that we just wanted to raise a couple of other contingent issues on it as we go forward, but I would ask my colleague Mr Granger, who is the practitioner in this discussion—rather than me—to make a couple of comments in respect of the bill and what we see as the real value of these changes.

Mr Granger : Thank you, Maureen. Good afternoon, Senators. Thank you very much for the opportunity. As Maureen said, we very much support and agree with the general consensus on this bill insofar as it really does go a long way to provide a much fairer and more equitable treatment of international students in the way in which they are reported and monitored, without compromising the integrity of the system. I have read in detail the department's own submission on this and the way in which they intend to address the reallocation of resources, and I think it is very much about the system continuing to effectively monitor international students, being able to differentiate between the genuine and the non-genuine students without any sacrifice of the integrity there, and being able to more effectively utilise the department's resources to determine who is genuine and who is not. The system has been in place and has been well documented in all the various submissions and the Auditor-General's report. My own experience as a migration agent, having worked with international students for over 10 years—throughout this whole period—is that the reporting and the automatic cancellation system have been a complete failure. The Federal Magistrates Court overturning 8,000-plus student cancellations in one single decision in the Uddin case is a classic example of how dysfunctional it has been, which has allowed for the good and the bad to get off the cancellation and does not effectively treat them on the merits of whether or not they have been breaching their visas.

The way in which I understand the department's own frustrations at the compliance department level in dealing with students is that they are very much only having to look at the section-20-reported students. Because of the impending 28-day deadline, that has always been the priority compared to all the other ranges of noncompliance. The classic examples given were a student who never turned up to a college and could have disappeared for two years. No-one cancelled his visa because it was not an automatic cancellation when the PRISMS system reported him for not attending the first day. But, for the genuine student who has been reported for an academic progress or attendance matter but is still actively engaged with the college, his visa is going to be subject to cancellation even though the department knows exactly where he is and would consider him to be a much lower risk than the other student, who they have not been able to identify for as long as two years and who has not been dealt with as part of that 350,000 backlog of non-processed noncompliance notices. So it is very important that this bill be supported in exactly what it is. As simple as it is, it is getting the system right and getting the system fair. The main consideration for government is to ensure that the resources are adequately provided to the department so that they can then effectively monitor on the discretionary basis that they want.

CHAIR: Thank you. I might go to some questions. Generally I guess what you are saying is that the automatic cancelling of the visa through the S20 notice has been inefficient, so this bill hopefully will be much more efficient and fairer, and you support it. Is that it in essence?

Mr Granger : Yes.

CHAIR: Okay. We have mainly had evidence from providers about the automatic requirement to notify DIAC within 14 days of a student's change of address or phone number. Your submission does not really go to that. They talk about the administrative burden of that and how only somewhere between one and five per cent of cases either are in doubt or breach their visa conditions. They see it as an unnecessary burden. Do you have any comments on or knowledge of that at all?

Mr Granger : I think, in our submission, we may have alluded to it, but probably not directly or clearly identified it. One of the last dot points in our submission relates to the difficulties with verifying whether the educational provider actually sent the section 20 notice, because there is no requirement for registered post delivery. What that really relates to, and from my own experience having dealt with such students, is the unreliability of the address: whether that letter was sent or not, when it was sent and where it was sent to? There is nothing that could ever prove that it was or was not sent to the address the student lived at, but on the 28th day, if they had not received that letter, the visa was cancelled. I think the ESOS Act amendment to require education providers to update the PRISM System so that a student's most recent, up-to-date address is adequately recorded is something that definitely should be occurring.

I understand Universities Australia's submission and its concerns about the additional resource or double-handling of student data. The department addresses that in the opposite way, saying that providers are not having to report under section 20 and that there is also a reduction of some of that administration. Beyond that, there is not much that we could really comment on, because it very much is related to education provider resources. It is imperative that, regardless of the department ensure that whatever compliance, monitoring, contact, letter or contact by phone that it wishes to use to investigate, a student is being able to access that information correctly. Student visa conditions require that a student notify their education provider of change of address. It does not require them to notify the department of immigration. The student's responsibility is to update the provider only. The provider therefore is responsible for ensuring that the records across the entire spectrum of educational providers are accurate and up to date.

CHAIR: Yes. They say they do that. Who will now issue the student with a notice that their visa has been cancelled or is about to be cancelled?

Mr Granger : Once there is a removal of the section 20 notice, my understanding is that there would still be a report to immigration under section 19, not under section 20, of the ESOS Act. They would still report under the same breach, under the same visa conditions of academic progress or attendance matters. There is no change in the actual conditions associated with the visa or whether or not compliance has or has not occurred. It is the manner in which they are reported. The student would have been notified by their educational provider that they have now been reported to immigration. The immigration department would still receive that report. The simple processed is that, on the 28th day after a report being generated, there is not an automatic cancellation. It is then, from my understanding, the department's discretion to decide how to deal with that based on their own risk management systems and their decision on how to follow up: maybe it is a phone call to find out what is going on with that student or maybe it is sending a formal letter of notice of intention to consider cancellation. They would look at that under the section 116 cancellation provisions, as opposed to automatic cancellation, which is 137J of the Act.

CHAIR: Do you think there is a need for that initial notification by the provider to be sent by registered post?

Mr Granger : In my own experience, yes, because of the unreliability of mail. As a general practice for migration agents we would only ever send important documents to the immigration department by registered post or courier, to ensure that we have some record of delivery. In a visa process we are responsible for responding to requests within specific time periods. If we cannot prove that we did respond, because something has gone missing through general Australia Post error, we have no leg to stand on. How do we know when a letter was sent? How do we know it was actually sent by a provider? At the very least, the requirement of $4 or $3, whatever the cost is, to provide a registered post letter should not be an onerous one.

Ms Horder : I wonder whether it is that the universities are feeling the general burden of some of the other administrative changes rather than that this particular one is going to add, from what my colleagues have said, to their burden. I think that they are very capable of speaking for themselves.

CHAIR: Yes. We have had them on. I think their problem is that one system does not automatically upload to the other system. If the two systems were talking to each other, the manual entry of the data and the time and resources that takes would not be such a problem.

Mr Granger : In the modern age of IT systems there should be some way for those systems to talk to each other, in the same way that departmental systems did not in the past but now do.

CHAIR: You are probably right there, but it is often easier to say than it is to do sometimes.

Ms Horder : Should the time period be longer? I leave that to the committee, the universities and the IT guys to decide. Do we need a longer period in which to get it done? Sometimes we put burdens on by being too precise in short periods of time.

CHAIR: We do not have any other questions for you today.

Ms Horder : Madam Chair, may I raise the other issue which is concerning us in respect of this and student visa cancellations. It is an issue that has really exercised our minds. Often if students have been issued with a notice they turn to their education agent in the expectation that they will be able to sort out their visa issue. Under the Migration Act, unless education agents are registered migration agents they are unable to give migration advice. I think there is a certain amount of misunderstanding about the roles of education agents. We have a concern that consumers end up being somewhat confused in a lot of these situations. If you can indulge us on this point, I would like to ask Jonathan to give you a typical example of where this can go haywire, because I think it is probably something that I am sure would concern the committee.

CHAIR: Go ahead.

Mr Granger : It is the severity of the section 20 notice and the absolute concern about the time frame in which a student must respond. In my experience, students who receive such notices from their providers and who dealt with an education agent for their student visa and their enrolment in the first instance will return to that same education agent, who may not be a registered migration agent, in Australia for further advice. From a consumer point of view, they have been misled into thinking that that office and that person is able to provide satisfactory advice on student visa matters, and that has led to matters relating to a visa cancellation.

The reason why a lot of international students may feel that that is the correct person to turn to is that, in the first instance, they have been able to use that agent for the full student visa process onshore. In my opinion, as a migration agent and specialist in student visas, when you deal with high-volume countries such as India and China, which are a high risk on the student visa program, there is nothing simple or clerical about the student visa application that an education agent would have. Yet the department of immigration does allow them to process student visa applications onshore. Offshore is a different matter. There is no regulation outside Australia's jurisdiction but, in Australia, it has been an ongoing issue. Within the context of the Knight review and consumer protection for international students, it is something that should be addressed further with the department of immigration. Should they be allowing, and therefore endorsing, the use of education agents onshore, who are doing more than clerical assistance and would be providing immigration advice under the definitions that the act has?

That is where we get a lot of mess in the system. Education agents may have tried to handle a section 20 notice, which is infinitely complicated, and it really ends up with that person at the MRT, spending a lot of money on legal advice when things could have been fixed a lot more easily and simply if they had had a much better awareness of the interaction of education agents versus migration agents in Australia.

CHAIR: I can see where you are both coming from. In a way it is related to the bill but not exactly to the specific text of this legislation. I can see the difficulty you have, with the knowledge of the migration agent versus the knowledge of the education provider.

Ms Horder : Yes, it is something we wanted to draw to your attention because it is actually in the issuing of these section 20 notices that it happens. I know, Madam Chair, from your past history that it is something that concerns you that there is protection for people. One of our members sent you a submission and said very well that international students in many senses are no different to other Australian students studying in Australia. They change their minds about courses, they behave like other young people and so we need to keep everything in perspective and not be too draconian in the way we apply this legislation. I guess that is just an overarching comment.

CHAIR: Yes, and probably a good point to finish on. Thank you for that reminder about those difficulties. I thank you both for your time this afternoon and for your submission to our inquiry.